SEXUAL ORIENTATION AND HUMAN RIGHTS IN HONG KONG

A report issued by the Hong Kong Human Rights Monitor

 

Executive Summary

 

A decade ago, in 1994, the United Nations Human Rights Committee declared that discrimination on the basis of sexual orientation is a violation of the fundamental human rights enshrined in the International Covenant on Civil and Political Rights (“ICCPR”). In the ten years since, sexual orientation rights have developed such that Hong Kong, as a member of the international human rights regime, can no longer ignore the human rights norms and obligations associated with sexual orientation.

 

         According to the UN bodies that monitor compliance with major international human rights treaties, sexual minorities are protected by those treaties. Moreover, these UN bodies have criticized Hong Kong for failing to adequately protect sexual minorities. In 2001, the UN Committee on Economic, Social, and Cultural Rights criticized Hong Kong, stating that “the failure of the HKSAR to prohibit discrimination on the basis of sexual orientation” is a “principal subject of concern.” On May 14, 2005, the UN Committee on Economic, Social, and Cultural Rights repeated its criticism, stating that it “wishes to reiterate in particular its concern [that] . . . present anti-discrimination legislation [in Hong Kong] does not cover discrimination on the basis of . . . sexual orientation.” In 1999, the UN Human Rights Committee similarly criticized Hong Kong: “The Committee remains concerned that no legislative remedies are available to individuals in respect of discrimination on the grounds of race or sexual orientation.” As a city that strives to comply with standards set forth by the UN, Hong Kong should not treat these criticisms lightly.

         Development of sexual orientation rights is not confined to the UN. Many states across the world have enacted laws that protect sexual minorities. Furthermore, these developments are not confined to the Western world. For example, South Africa, Ecuador, and Fiji illustrate this fact; all three of these states have modified their national constitutions to expressly proscribe sexual orientation discrimination. In another example not very far from Hong Kong, the government of Taiwan has taken steps to protecting sexual minorities. Taiwan has already established public policies that protect sexual minorities. There is also pending legislation in Taiwan to legalize same-sex marriage.  

 

         Opponents to sexual orientation rights might point out that a fair number of states still do not protect sexual minorities. Indeed, many countries still tolerate or even sanction violence against sexual minorities. These states, however, are not Hong Kong’s peers; they are states that generally have poor human rights records and are regularly condemned by the UN and international NGOs. Thus, while it is true that Hong Kong is not the only state that lacks legal protection for sexual minorities, Hong Kong must ask itself whether it wishes to be associated with these states that maintain poor human rights records.

 

         Some groups in Hong Kong have asserted that there should be a ceiling placed on local sexual orientation rights because sexual orientation is a sensitive cultural issue that should be molded to fit the local culture of Hong Kong. This logic is faulty. Four reasons stand to challenge that logic. First, the UN Human Rights Committee has explicitly denounced culture as a defense to violations of sexual orientation rights. Second, the human rights regime’s purpose is to protect minorities, especially when they are marginalized by local majoritarian cultures. Third, other Asian jurisdictions with similar cultural mores (e.g., Taiwan) have begun to accommodate sexual orientation rights. And fourth, studies show that Hong Kong is culturally receptive to the protection of sexual minorities; in 2002, Hong Kong Polytechnic University conducted a public opinion survey and found that up to 80 percent of respondents supported extending equal rights to gays and lesbians.

 

         To improve Hong Kong’s treatment of sexual minorities, this report proposes a three-pronged policy reform. First, the government of Hong Kong should equalize the age of consent laws governing same-sex and opposite-sex sexual relations. Second, the government should establish a sexual orientation antidiscrimination ordinance. Third, the government should establish means for recognizing same-sex partnerships. These reforms can be implemented incrementally. With that said, Hong Kong must begin reforms in order to maintain its standing as a world city that abides by international standards.

 

Equalizing Age of Consent Laws

 

Currently, Hong Kong maintains divergent regulations on same-sex and opposite-sex sexual relations. The age of consent for gay intercourse (i.e., buggery) is 21, but the age of consent for heterosexual (i.e., vaginal) intercourse is 16. Also, while men who engage in underage vaginal intercourse are liable to imprisonment for up to five years, men who engage in underage buggery are liable to life imprisonment. Interestingly, Hong Kong’s age of consent laws entirely ignore the existence of lesbians.

 

      Disparity in ages of consent between same-sex and opposite-sex relations is a violation of human rights law. Such disparity violates the antidiscrimination provisions of the ICCPR and the Convention on the Rights of the Child (“CRC”). From a comparative standpoint, Hong Kong is out-of-line with its Asian peers. Taiwan, South Korea, Thailand, Vietnam, Cambodia, and the Philippines all have equal ages of consent between homosexual and heterosexual couples. In Europe, the European Commission on Human Rights stated that disparity in age of consent laws infringes human rights—both the individual’s right to privacy and the individual’s right to nondiscrimination. These principles have been echoed in subsequent determinations at the European Court of Human Rights (“ECHR”). Because Hong Kong’s regulation of sexuality is inconsistent with human rights norms, Hong Kong must reform its criminal laws by eradicating all disparities between its age of consent laws.

 

Establishing an Antidiscrimination Ordinance

 

At present, sexual minorities in Hong Kong have no legal redress against discrimination. The only government progress has been through non-enforceable policy declarations issued by the Home Affairs Bureau. In its statement, “Equal Opportunities: Sexual Orientation,” the Home Affairs Bureau announced that “[e]veryone shall have equal opportunities in every aspect of life, irrespective of race, colour, sex, religion, sexual orientation, or any other status. . . . [A]part from their sexual orientation, bisexuals, lesbians and gays are the same as any other members of the community.” The Home Affairs Bureau also published a “Code of Practice Against Discrimination in Employment on the Ground of Sexual Orientation.” Unfortunately, the code is again only a list of recommendations.

 

        The UN Human Rights Committee has stated that individuals should not be denied civil and political rights on the ground of sexual orientation. Meanwhile, the UN Committee on Economic, Social, and Cultural rights has stated that individuals should not be denied their economic, social, and cultural rights based on the ground of sexual orientation. These civil, political, economic, social, and cultural rights manifest in various forms such as sexual minorities’ equal right to employment, public services, and access to public accommodation.

 

        The UN is not alone in championing sexual minorities’ right to nondiscrimination. Jurisdictions around the world have taken initiatives to protect sexual minorities’ right to equality. In Europe, for example, the Treaty establishing the European Community (the Treaty of Rome) includes “sexual orientation” as a ground for protection against discrimination. Subsequently, the European Council issued a directive in 2000 expressly prohibiting direct and indirect discrimination against sexual minorities with regards to employment.

 

        Protection of sexual minorities is not confined to Europe. For example, in Canada, sexual orientation is a ground for protection in the Canadian Human Rights Act as well as the human rights codes of individual Canadian territories. In the United States numerous states and municipalities prohibit discrimination on the basis of sexual orientation. In Central and South America, sexual orientation is a ground for protection in various local and national laws of Brazil, Costa Rica, and Ecuador. In Africa, South Africa’s constitution expressly protecting sexual minorities and Namibia’s employment laws also protect sexual minorities. In the Middle East, Israel’s employment laws expressly protect sexual minorities. New Zealand and Australia both have laws protecting the opportunity rights of sexual minorities. In Asia, Hong Kong’s neighbor, Taiwan, recently passed a law protecting sexual minorities’ right to educational and recruitment opportunities. Additionally, Taiwan’s pending human rights basic law would further those rights. In Korea, the National Human Rights Commission Act subjects discrimination on the ground of sexual orientation to the Commission’s investigation.

 

        As illustrated above, equality protections for sexual minorities is widespread. Given this backdrop, one thing is strikingly clear: Compared to its peer jurisdictions that respect human rights, Hong Kong is the odd one out with no enforceable legislation expressly protecting sexual minorities. If Hong Kong is to maintain its reputation as a world city, it must enact antidiscrimination legislation to protect sexual minorities.

 

Recognizing same-sex partnerships

 

         A specific subset of sexual minorities’ equal rights is their right to recognition for same-sex couples. The UN Human Rights Committee and a growing number of jurisdictions around the world recognize same-sex partnerships.

 

         The LegCo Subcommittee to Study Discrimination on the Ground of Sexual Orientation attempted to address the right of same-sex couples, but the attempt largely failed. The Hong Kong government has conflated same-sex couples’ rights with “marriage” rights and dismissed such rights altogether. This logic is faulty. It is possible to grant partnership status to same-sex couples without recognizing same-sex marriage. The government of Hong Kong should consider the following options for recognizing same-sex couples: (1) establishing a preliminary non-rights conferring partnership registry, (2) establishing a rights conferring partnership registry, (3) legalizing same-sex marriage, and (4) recognizing same-sex couples for the purposes of immigration law.

 

Conclusion

 

        To conclude, Hong Kong’s poor standing on the issue of sexual orientation necessitates legal reform. Reforms can be placed into three categories: First, the Administration should eradicate any discrepancy between the criminalization of same-sex and opposite-sex sexual relations. Second, the Administration should enact an antidiscrimination ordinance to protect the equal rights of sexual minorities. Third, the Administration should enact additional legislation to grant recognition to same-sex couples.